Crazy

Jason criticized the Nassau District Court’s 2010 Amato decision soon after it was issued. The later history matters: in 2013, the Appellate Term, Second Department reversed the resulting judgment and directed judgment for State Farm.

Legal Update (September 2026): The judgment following the 2010 Amato decision was reversed on July 3, 2013, with judgment directed for the insurer; see the archive note on that appeal.

Last reviewed: September 2026.

What changed on appeal

The 2013 decision described an IME chiropractor who testified that the patient had returned to her pre-accident condition and no longer needed the disputed treatment. After that showing, the provider had to demonstrate medical necessity by a preponderance of credible evidence. The provider offered no evidence; a later worsening of the condition would have been speculation.

The reversal addresses that trial proof. It does not hold that every IME automatically defeats all later claims, or decide the full verification and anticipatory-repudiation argument Jason made below. The original discussion should be read as a dated criticism of a judgment that was later reversed.

Jason’s original comment

Jason’s October 2010 discussion follows unchanged, including his quotations from the trial decision. Read it with the 2013 reversal above. His categorical statements about verification, future bills and the carrier’s choices are historical argument; the appeal did not decide or endorse all of those propositions.

This will be two posts in a row where the name “Domotor” will be mentioned.  Why you ask?  Well, if you read the court’s legal findings in the matter of Amato v State Farm Ins. Co., 2010 NY Slip Op 20431 (Dis. Ct. Nassau Co. 2010), you will understand.

Statement #1: “An IME is a snapshot of the injured parties medical condition as of the date of the IME. The opinion of the doctor conducting an IME and issuing a report that no further treatment or testing is needed is nothing more than an expert’s opinion that at the time the examination was conducted the claimant did not need any further treatment or testing. As regards the need for future treatment, the IME is nothing more than an expert’s prediction that the claimant has fully recovered or received the maximum therapeutic benefit from the treatment and does not presently need any additional treatment.”

I can agree with this statement.

Statement #2: “However, there is no legal reason why claims for medical treatment submitted after an “IME cut-off” has been issued should be treated any differently than claims submitted prior to the IME. Therefore, a timely submitted claim for medical services rendered after the issuance of an IME cut-off is presumed to be medically necessary. The timely submission of a post IME cut-off claim shifts the burden to the defendant to establish a factual basis and medical rationale for its determination the treatment was unnecessary.”

This seems correct.

Statement #3: “Dr. Aordkian testified that he did not review any reports or records relating to the treatment Burrell received after the IME. He was unaware of the reasons Burrell sought and obtained the treatment. He was unaware of the treatment provided. Therefore, the defendant failed to prove either a factual basis or a medical rationale for its determination the chiropractic treatment was unnecessary.”

This is wrong on the law.

Statement #4: “The defendant could have obtained the necessary information through verification and could have had Dr. Aordkian or any other qualified expert review the material and render an opinion regarding the medical necessity of the treatment rendered. State Farm did not do this.”

The plaintiffs cannot have their cake and eat it too.

The simple fact is this: once a carrier cuts off further benefits, there is no future burden on the Claimant to submit bills to the carrier.  The corollary to this rule is that absent  the statutory application of 5106(a), as limited by A&S Medical v. Allstate (requiring compliance with the 30-day pay or deny rule when a provider submits bills to the carrier post-IME), a carrier has no further burden to adjust the claims.  In other words, once a global denial is issued, the carrier has two options: deny and stand by the IME or write a check for $50,000.  A carrier may not seek verification since the Claimant is under no duty to comply with the contract of insurance when there has been an anticipatory repudiation of the insurance contract.

I know the argument can be made that in instances where the Claimant submits bills post IME, despite its right not to do the same, then the carrier has the ability to seek verification.  What makes this statement problematic, however, is that the provider who complies with 5106(a) post IME, would under this construction of the law, be subjected to a greater burden than the Claimant who shirks his duties under 5106(a).  And again, an insurance carrier who states that a Claimant is not entitled to further benefits under the construction of law that Domotor has created, may either stand by the denial or open up the checkbook.

It is based upon this reality that this decision is wrong on the law.  Here is how the decision can be fixed:

Applied to this case, statement #4 should read like this: “The defendant could NOT have obtained the necessary information through verification and could NOT have had Dr. Aordkian or any other qualified expert review the material and render an opinion regarding the medical necessity of the treatment rendered. State Farm did not [everything the Appellate Department, Second Division in Domotor said it could] do this.”

Finally, one has to admit that if this is really a proper of statement of law – and I will bet good money it is not as set forth above- then it is going to be more difficult for the plaintiff medical provider to credibly resist being compelled to comply with certain disclosure devices that the plaintiffs bar does not like to hear or admit exists.

Connect to the Encyclopedia

• Medical necessity and peer review: topic hub
• PSW Chiropractic: credibility at a nonjury trial
• Jason’s 2016 question about substitute IME testimony
• Amherst: identify the missing medical information
• Triangle R: defective DME opposition
• Amato on appeal: the later reversal note

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